Jeebinsa v. State of Kerala and Others

``` CR ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 WP(C) NO. 13448 OF 2022`** ## **`PETITIONER/S:`** ``` JEEBINSA, AGED 49 YEARS, W/O. SHAMSUDHEEN, CHIRAYIL HOUSE, CHERIKONAM, KANNANALLUR P.O, KOLLAM, PIN - 691576. BY ADVS. K.V.JAYADEEP MENON T.P.RAMESH (THENGUMPILLIL) P.KRISHNAPRIYA JINS.P.JOHN VAISHAKH M.S ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - PIN - 695001. 2THE DISTRICT LEVEL AUTHORIZATION COMMITTEE FOR RENAL TRANSPLANTATION, REPRESENTED BY ITS CHAIRMAN, THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, THRISSUR, MEDICAL COLLEGE P.O, THRISSUR DISTRICT, PIN - 680596. 3THE ASSISTANT POLICE COMMISSIONER, CHATHANNUR, KOLLAM DISTRICT, KERALA, PIN - 691572. ``` ## **`OTHER PRESENT:`** ``` SMT.DEEPA NARAYANAN, SR.GP ``` -2- W.P.(C). No. 13448 of 2022 ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No. 13448 of 2022 ## **CR** ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 13448 of 2022 ============================================================= Dated this the 18[th ] day of May, 2022 ## **JUDGMENT** The petitioner is aggrieved by Ext.P4 order, by which an application for the organ donation, submitted as per the Transplantation of Human Organs and Tissues Act, 1994 ( _for short ‘the Act, 1994’_ ) and the Transplantation of Human Organs and Tissues Rules, 2014 ( _for short ‘the Rules, 2014’_ ) is rejected. Mr.Safir T.V., S/o. Mohammedunni is a chronic kidney patient. According to the petitioner, she and her husband had a close relationship with Mr.Safir for the past several years. Hence she decided to donate her kidney to Mr.Safir. The petitioner and the recipient Mr.Safir, submitted Ext.P1 joint application in Form-3 giving consent for donating the kidney. Ext.P2 is Form-11 application. Earlier, the petitioner approached this Court, and this Court, as per Ext.P3 judgment, directed the authority -4- ## W.P.(C). No. 13448 of 2022 concerned to consider the application and pass appropriate orders. Thereafter, Ext.P4 is issued rejecting the application. Aggrieved by the same, this writ petition is filed. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The learned counsel for the petitioner submitted that Ext.P4 is an order without adverting to the facts of the case. It is also contended that it is not a speaking order. The counsel submitted that the Authorisation Committee relied on the report of the Assistant Police Commissioner without considering the other criteria as per the Act and Rules. The counsel also takes me through Section 9 of the Act, 1994 and Rule 7 of the Rules, 2014. The counsel submitted that a detailed procedure is to be followed while considering an application as per the Act, 1994 and the Rules, 2014. The same is not followed. -5- ## W.P.(C). No. 13448 of 2022 4. The learned Government Pleader, on the other hand, submitted that it is a clear case, where there is commercial transaction and that is why the police report is accepted by the 2[nd] respondent. The Government Pleader submitted that this Court may not entertain this writ petition because the police, after collecting evidence, submitted the report and the competent authority accepted the same and rightly rejected the application. 5. This Court considered the contention of the petitioner and the learned Government Pleader. Specific procedures are prescribed as per the Act 1994 and Rule 2014 for considering an application for organ transplantation. The authorization committee constituted under Section 2(c) of the Act 1994 has to consider such application as per the mandates in the Act 1994 and the Rules 2014. It will be better to extract Section 9 of the Act and Rule 7(3) of the Rules 2014 hereunder: -6- W.P.(C). No. 13448 of 2022 _Section 9 of the Act, 1994;_ _**9. Restrictions on removal and transplantation of [human organs or tissues or both]** .--(1) Save as otherwise provided in sub-section (3), no human organ or tissue or both] removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient._ _3 (1A) Where the donor or the recipient being near relative is a foreign national, prior approval of the Authorisation Committee shall be required before removing or transplanting human organ or tissue or both:_ _Provided that the Authorisation Committee shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian national unless they are near relatives._ _(1B) No human organs or tissues or both shall be removed from the body of a minor before his death for the purpose of transplantation except in the manner as may be prescribed._ _(1C) No human organs or tissues or both shall be removed from the body of a mentally challenge person before his death for the purpose of transplantation.--_ _Explanation.--For the purpose of this sub-section,--_ _(i) the expression "mentally challenged person" includes a person with mental illness or mental retardation, as the case may be;_ -7- W.P.(C). No. 13448 of 2022 _(ii) the expression "mental illness" includes dementia, schizophrenia and such other mental condition that makes a person intellectually disables;_ _(iii) the expression "mental retardation" shall have the same meaning as assigned to it in clause (r) of section 2 of the Persons With Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 (1 of 1996).]_ _(2) Where any donor authorises the removal of any of his human organs or tissues or both after his death under sub-section (2) of section 3 or any person competent or empowered to give authority for the removal of any human organ or tissue or both from the body of any deceased person authorises such removal, the human organ may be removed and transplanted into the body of any recipient who may be in need of such human organ or tissue or both._ _(3) If any donor authorises the removal of any of his human organs or tissues or both before his death under sub-section (1) of section 3 for transplantation into the body of such recipient not being a near relative as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ or tissue or both shall not be removed and transplanted without the prior approval of the Authorisation Committee._ _(3A) Notwithstanding anything contained in sub-section (3), where--_ _(a) any donor has agreed to make a donation of his human organ or tissue or both before his death to a recipient, who is his near relative, but such donor is not compatible biologically as a donor for the recipient; and_ -8- W.P.(C). No. 13448 of 2022 _(b) the second donor has agreed to make a donation of his human organ or tissue or both before his death to such recipient, who is his near relative, but such donor is not compatible biologically as a donor for such recipient; then_ _(c) the first donor who is compatible biologically as a donor for the second recipient and the second donor is compatible biologically as a donor of a human organ or tissue or both for the first recipient and both donors and both recipients in the aforesaid group of donor and recipient have entered into a single agreement to donate and receive such human organ or tissue or both according to such biological compatibility in the group,_ _the removal and transplantation of the human organ or tissue or both, as per the agreement referred to above, shall not be done without prior approval of the Authorisation Committee.]_ _(4) (a) The composition of the Authorisation Committee shall be such as may be prescribed by the Central Government from time to time._ _(b) The State Government and the Union territories shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the State Governments and the Union territories on such terms and conditions as may be specified in the notification for the purposes of this section._ _(5) On an application jointly made in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of_ -9- W.P.(C). No. 13448 of 2022 _this Act and th e rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ._ _(6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval._ (Underline supplied) _Rule 7(3) of the Rules, 2014;_ _7. Authorisation Committee.—_ **==> picture [140 x 42] intentionally omitted <==** _(3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall,-_ _(i) evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person;_ _(ii) prepare an explanation of the link between them and the circumstances which led to the offer being made;_ _(iii) examine the reasons why the donor wishes to donate;_ _(iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc.;_ -10- W.P.(C). No. 13448 of 2022 _(v) examine old photographs showing the donor and the recipient together;_ _(vi) evaluate that there is no middleman or tout involved;_ _(vii) evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing;_ _(viii) ensure that the donor is not a drug addict;_ _(ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of.”_ 6. A reading of Section 9 and Rule 7(3), it is clear that several factors are to be considered by the Authorisation Committee while considering an application for organ transplantation. It is a quasi judicial authority. A perusal of Ext.P4 would show that the application is rejected in one -11- W.P.(C). No. 13448 of 2022 sentence. It will be better to extract the order passed by the Authorisation Committee: _“Permission is not granted for the following reasons_ _The Assistant Police Commissioner, Chathannur has reported in letter no.06/Altruism/2021/CS dated 10.06.2021 there is commercial transaction between the recipient and donor.”_ 7. The Authorisation Committee ought not to have accepted the police report without considering the same on merit along with other factors mentioned in the Act and Rules. The Authorisation Committee cannot blindly accept the police report and reject an application in the light of Section 9(5) & (6) of the Act, 1994 and Rule 7(3). If a joint application is submitted by the donor and the recipient, the Authorisation Committee is bound to conduct an inquiry. After inquiry and after giving an opportunity of hearing to the applicants, the Authorisation Committee has to decide the matter. A police report alone is not -12- W.P.(C). No. 13448 of 2022 the criteria to dismiss the application. Along with the police report, the other circumstances mentioned in the Act and Rules are also to be considered by the Authorisation Committee before taking a decision. Moreover, if the Authorisation Committee feels that the application is to be rejected, a speaking order is necessary. In the light of Section 9 of the Act and Rule 7 of the Rules, 2014, the duty of the Authorisation Committee is an onerous one. Moreover, it is a divine duty also. The reason for rejecting the application should be mentioned in detail in Form19 by the competent authority. Then only if an appeal is filed challenging that order, the appellate authority can consider the appeal in a meaningful manner. Hence the police report is to be analysed along with other criteria mentioned in the Act, 1994 and the Rules, 2014, and if the competent authority decides to reject the application, a speaking order is necessary. The same is lacking in Ext.P4. -13- W.P.(C). No. 13448 of 2022 8. In **M/s. Kranti Associates Pvt. Ltd. and Another v.** **Sh. Masood Ahmed Khan and Others** (2010 KHC 4651) the Apex Court framed certain guidelines to be followed by the quasi judicial authorities while passing orders. The relevant portion of the above judgment is extracted hereunder: “ _51. Summarizing the above discussion, this Court holds:_ _a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially._ _b. A quasi-judicial authority must record reasons in support of its conclusions._ _c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well._ _d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasijudicial or even administrative power._ _e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations._ _f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies._ -14- W.P.(C). No. 13448 of 2022 _g. Reasons facilitate the process of judicial review by superior Courts._ _h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice._ _i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system._ _j. Insistence on reason is a requirement for both judicial accountability and transparency._ _k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism._ _l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process._ _m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of_ W.P.(C). No. 13448 of 2022 -15- _Judicial Candor (1987) 100 Harward Law Review 731737)._ _n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions"._ _o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process"._ Bearing in mind the above dictum, I perused Ext.P4 order. It is not a speaking order. It is not an order as per the Act 1994 and Rule 2014. The reasoning in Ext.P4 based on the police report alone is unsustainable. Therefore, without expressing any opinion on merit, Ext.P4 can be quashed, and the competent authority can be directed to reconsider the matter within a time frame. -16- W.P.(C). No. 13448 of 2022 Therefore, this writ petition is allowed in the following manner: 1. Ext.P4 order is quashed. 2. The 2[nd] respondent is directed to reconsider Exts.P1 and P2 applications, in accordance with the law, after giving an opportunity of hearing to the affected parties, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -17- W.P.(C). No. 13448 of 2022 ## **`APPENDIX OF WP(C) 13448/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1THE TRUE PHOTOSTAT OF THE JOINT APPLICATION IN FORM-3 OF THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES RULES, 2014 DATED 13.07.2020 SUBMITTED BY THE PETITIONER TO THE LOCAL LEVEL COMMITTEE - HOSPITAL. Exhibit P2THE TRUE PHOTOCOPY OF THE APPLICATION FOR THE APPROVAL OF TRANSPLANTATION FROM LIVING DONOR UNDER FORM 11 OF THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES RULES, 2014, SUBMITTED BY THE PETITIONER TO THE LOCAL LEVEL COMMITTEE - HOSPITAL. DATED 13.07.2020. Exhibit P3THE TRUE PHOTOCOPY OF THE JUDGMENT IN FILING WRIT PETITION (C) NO. 4528 OF 2021 OF THE HONOURABLE HIGH COURT OF KERALA, ERNAKULAM DATED 25.02.2021. Exhibit P4THE TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT UNDER FORM -19 REJECTING PERMISSION. Exhibit P5THE TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT OF CHALISSERY GRAMA PANCHAYATH DATED 07.03.2020. Exhibit P6THE TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT OF THRIKKOVILATTOM GRAMA PANCHAYATH DATED NIL. ```